DeGasperis case, related to the finding of the Divisional Court, July 2005, is part of the OMB’s parallel universe

The DeGasperis Case, related to a July 2005 finding of the Divisional Court, concerns what I, as a Toronto resident, have come to view as a unique, remarkable parallel universe, or as an astounding alternate reality.

The text of the latter article (as is my standard practice, I have broken longer paragraphs into shorter ones, for ease of online reading) reads:

The recent debate about the Ontario Divisional Court’s judgment in Vincent v. DeGasperis has taken on some of the qualities of an urban myth: at no time was it ever argued, whether before the Committee of Adjustment, the Ontario Municipal Board (“OMB”), or the Courts, that the four tests under subsection 45(1) of the Planning Act should be interpreted in a way that added a fifth test of “need” or a sixth test of “hardship.”

Unfortunately, the OMB’s decision seized upon that description, which was then subsequently repeated by those in support of the applicant homeowners’ position, and those who had not read the facta!

[Yes, we are dealing with facta! May we always deal with facta!]

Not surprisingly, therefore, the decision of the Ontario Divisional Court
(July 8, 2005), Court File No. Toronto 775/03 and 777/03, Matlow, Jarvis, Molloy JJ. (Ont. Div. Ct,), speaks only to the proper interpretation of each of the four tests of the Planning Act, gives guidance to the proper interpretation of subsection 45(1) of the Planning Act in its totality and provides comment as what constitutes acceptable evidence in a decision of the proper appreciation of the tests.

Background

The homeowners, Mr. and Mrs. DeGasperis, Jr., brought an application to the City of Toronto Committee of Adjustment for a number of minor variances to allow the construction of a new two-storey dwelling on a lot in the prestigious Hoggs Hollow area of Toronto.

The structure abutted and overlooked the third tee of the Rosedale Golf Course, and its rear yard was separated from its neighbour’s (Vincent) side yard by a minor tributary of the Humber River.

The size and design of the house was such that variances were sought to allow increased building height from the permitted 8 m maximum for a flat roof to 10.6 m; increased building length from the permitted 16.8 m to 26.9 m; and to allow two balconies in excess of the permitted 3.8 m2 – one at 110 m2.

In addition, the house included below-grade parking and a terrace and swimming pool complex on the roof of a basement measuring approximately 790 m2 (8,500 sq. ft.!!), which avoided the necessity for variances due to amendments to finished grade elevations.

The Committee of Adjustment refused the application on the grounds that it did not meet the tests of the Planning Act, and the homeowners appealed to the OMB. The OMB granted the variances, with some modifications, in a decision dated December 5, 2003 (2 M.P.L.R. (4th) 124).

It was agreed by all parties at the OMB hearing that there was no “hardship” or “need” for the variances, other than the homeowners’ preference for that particular size and style of building. In other words, it was common ground that there was no technical or physical reason for not complying with the zoning by-law.

The homeowners argued that it was not necessary to establish why the standards of the zoning by-law could not be met, simply because there was no evidence of impact: if there was no impact, it was argued, the intent of the Official Plan and zoning by-law could, therefore, be said to be met, and the development would have to be judged appropriate and desirable.

The OMB, in reviewing each of the four tests, came to the conclusion that the tests were satisfied and that no impact had been established.

Leave to Appeal Granted

The neighbour and the Rosedale Golf Club sought and obtained leave to appeal to the Ontario Divisional Court (47 O.M.B.R. 11) on the basis that the OMB erred in law by subsuming three of the four tests under subsection 45(1) of the Planning Act to the sole question of impact, thereby failing to properly address three of the four tests[:]

that the Board erred in law in rejecting previous decisions of the OMB that a minor variance is a “special privilege” and that applicants for minor variances must be able to demonstrate why they cannot adhere to the zoning by-law;

that the OMB manifestly misapprehended and misconstrued the evidence;

and that the OMB erred by relying upon an illegal and unenforceable condition in its conclusion that no impact would result.

In the decision on the application for leave, Cunningham A.C.J. made it clear that the issue of “impact” is relevant to the “minor in nature” test, but underscored that each of the remaining three tests must also be carefully considered and satisfied.

In this regard, Cunningham A.C.J. found there was no sufficient analysis of the second, third and fourth tests by the OMB and that, “accordingly, by apparently subsuming three of the four statutory tests to the single test of ‘impact’ the Board may have erred in law.”

With respect to the second issue, Justice Cunningham noted that there appears to be ample authority in support of the proposition that a minor variance is a “special privilege” and that a review of OMB decisions would demonstrate that to comply with the four tests, an applicant had to be able to demonstrate something more than personal preference as a justification for a variance.

Noting that “it does not appear that any justification was given for the intrusive nature of the proposed rear balcony or indeed for the substantial building mass,” Justice Cunningham found that the OMB may have erred in law in failing to require such evidence, and that this matter required clarification by the Divisional Court.

With respect to the third and fourth issues, that is technical errors in the understanding of the evidence, and reliance upon an irrelevant or unenforceable condition, Cunningham A.C.J. found that those, too, merited the attention of the Divisional Court.

Divisional Court Decision

The full panel of the Divisional Court, with Justice Matlow as president, allowed the appeal, holding that the standard of review on appeals from decisions of the Ontario Municipal Board involving applications for minor variance was “reasonableness.”

Even under this deferential standard, however, the Divisional Court determined that the OMB’s decision erred in law on a number of heads, stating that “the Board’s Reasons cannot withstand the somewhat probing examination involved in the reasonableness test. The errors of the Board are so serious and extensive that they fail to meet the standard of reasonableness.”

To give context to its analysis, the Divisional Court made it clear that each of the four tests must be interpreted in accordance with the “adequately clear and unambiguous language of Section 45,” and that the Committee of Adjustment, or the OMB in the event of an appeal, was to “set out whatever may be reasonably necessary to demonstrate that it did so.”

The Divisional Court then went on to note that the definition of “minor” is something that is “lesser or comparatively small in size or importance” such that a variance could be more than minor either because it is too large, or too important. The Divisional Court noted:

“The likely impact of a variance is often considered to be the only factor which determines whether or not it qualifies as minor but, in my view, such an approach incorrectly overlooks the first factor, size. Impact is an important factor, but it is not the only factor. A variance can, in certain circumstances, be patently too large to qualify as minor even if it likely will have no impact whatsoever on anyone or anything. [emphasis added]”

Next, the Divisional Court indicated that each variance was to be considered as to whether or not it, either alone or together with the other variances sought, was desirable for an appropriate use of the property, not from a private perspective, but rather from a planning and public interest point of view.

The Divisional Court noted that in order to satisfy the third and fourth tests of whether the variance would maintain the general intent and purpose of the zoning by-law and Official Plan, the Committee of Adjustment, or the OMB on appeal, “was required to engage in an analysis of the [zoning by-law and Official Plan] to determine its general intent and purpose,” and to set out what it found in that analysis, and how the variance sought would maintain that general intent and purpose.

The Divisional Court agreed with the OMB that a minor variance “is not a ‘special privilege’ that requires the applicant to justify the relief sought on the basis of need or hardship” going on to say, however, that the use of the permissive word “may” in subsection 45(1) confers upon the Committee of Adjustment or the OMB, on appeal,

“a residual discretion as to whether or not to grant [variances] even when the four tests are satisfied. In exercising its discretion, a Committee is entitled to take into account anything that reasonably bears on whether or not an application should be granted and, in my view, need and hardship are factors that, in appropriate cases, can properly be taken into account. However, even when these factors are taken into account and an application for a minor variance is granted, that does not transform the granting of the minor variance into a special privilege. [emphasis added]”

[What the “emphasis added” refers to is unclear; nothing in the online version of the text is emphasized, in the passage that in quoted at this point in the article.]

With these words, the Divisional Court properly captured what the appellants had argued: not that “need” and “hardship” are mandatory and/or additional tests, but rather that they could, in certain circumstances, be proper considerations as to why a variance to the zoning by-law is in the public, not private, interest.

Finally, the Divisional Court agreed that throughout the OMB’s reasons, the focus of the decision was on the impact of the variance sought, with little or no regard for anything else. It was noted that throughout the OMB’s reasons, there were references to the evidence of witnesses whose evidence the OMB accepted, but those references do not state what the evidence was or why it was preferred over other evidence.

Summary

The decision in Vincent v. DeGasperis is important in that it so clearly restates what had been the historic interpretation of the four tests of the Planning Act, and reminds us all that each of the four tests must be addressed; merely establishing that there is no impact does not satisfy the intention of the legislation.

For the first time, however, the Divisional Court also spelled out the fact that variance relief is discretionary, and that decision-makers considering variances also have an obligation to consider the public interest, and whether, as a whole, the variances do not result in something which is either too big or is otherwise “too important.”

Finally, the Divisional Court helpfully underscored that the decision-maker must spell out how it arrived at its decision so that the basis for the decision can be understood and challenged, if necessary (traditionally, Committees of Adjustment have simply only indicated whether or not each of the four tests were satisfied).

Little has changed in law, but the guidance of the decision should serve to sharpen the focus of those who present the evidence, and those who consider it.

N. Jane Pepino, C.M., Q.C., LL.D.

N. Jane Pepino, C.M., Q.C., LL.D. Source: Aird & Berlin LLP website

N. Jane Pepino, C.M., Q.C., LL.D. is, from 1982, the founder of A&B’s Municipal & Land Use Planning Group. Jane has been practising exclusively in the municipal and land use planning area since her call to the bar in 1973. She acts for all the varied interests involved in and affected by the land use planning process at all levels, from the Committee of Adjustment, through OMB hearings and the Ontario Courts.

Jane was counsel for the successful applicant/appellant in Vincent v. DeGasperis on both the leave to appeal application and the appeal at the Ontario Divisional Court. Jane will be before the Ontario Municipal Board for a four-day re-hearing of this matter on October 7, 2005 as the OMB has scheduled a reconsideration of the application pursuant to section 43 of the Ontario Municipal Board Act.